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Mitchel v. Ensor11/18/2002
enlarged clitoris has never been reported as a side effect in medical literature as a result of one injection of any strength of testosterone. The experts that testified on behalf of the defendant noted that they had never seen or known of such a side effect occurring from such a procedure. The plaintiffs' expert, Dr. Shrader, agreed that he was not able to find any medical literature that described a case such as the present case and characterized the plaintiff's condition as "a rare condition." Dr. Shrader did not testify that it was essential that the plaintiff be advised of clitoral enlargement in order for her to consent to the treatment. We quote from his cross-examination in the record:
Q: The standard of care does not require a physician to list each and everything that's possible because it's a multitude of things, right?
A: That is correct.
Q: So what you do is explain the likely risks?
A: That's correct.
Q: Not something that occurs rarely or only one time in a thousand?
A: That's correct. But, again, the standard of care requires that you, you know, when you initiate a drug that you do this. And in Mrs. Mitchell's case, it was not done. She wasn't informed of any risks of the Depo-Testosterone.
Q: If the condition is as rare as you say it is, Doctor, no physician would warn a patient of that?
A: But you do it in the general way of if you're going to give a male hormone to a female. It behooves us to say this is a male hormone, these are male things that may happen to you. Now, no, I'm not saying I would tell every one of my patients you're going to have a clitoris that grows two and a half inches, but I would tell them of the hair, the male changes.
And in my experience, over 30 years now, in dealing with a lot of women in menopause, you tell them the male things and if they - most of them will not want to take the drug in the first place. And then those who do choose the drug, discuss it with them, what kind of male things. So that's how you get informed consent.
Under the state of the record before us, we conclude that the trial court correctly denied plaintiffs' special request for instruction concerning the lack of informed consent.
II.
In their second issue for review, plaintiffs ask us to determine whether the trial court erred when it failed to strike the direct testimony of Dr. Ensor regarding the applicable standard of care, and whether or not he breached this standard because the testimony was not based on a reasonable degree of medical certainty. Plaintiffs further assert that the trial court improperly re-opened direct examination, after plaintiffs' motion to strike, to allow defendants to correctly found Dr. Ensor's testimony on a reasonable degree of medical certainty. Plaintiffs contend that Dr. Ensor's testimony about the standard of care and his alleged breach of the standard was drawn from outside expertise and experience, and not solely from his treatment of Mrs. Mitchell. On this basis, plaintiffs argue that Dr. Ensor was testifying as an expert, not as the treating physician, and therefore, his testimony must have been premised upon a reasonable degree of medical certainty.
After reviewing plaintiffs' objection at trial and their presentation of this issue in their brief, we are persuaded that plaintiffs' argument is premised not on whether Dr. Ensor was entitled to testify as to the applicable standard of care or his alleged breach, but solely on the assertion that he failed to incorporate the magic words "to a reasonable degree of medical certainty" into his testimony. While we agree that an expert in a
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